New York Court of Appeals, 1968

Indig v. Finkelstein

New York Court of Appeals · Decided November 27, 1968

23 N.Y.2d 728; 244 N.E.2d 61; 296 N.Y.S.2d 370; 1968 N.Y. LEXIS 995

Cases that cite this one

150 later published cases cite this decision. The 25 that cite it most often are listed here.

Rennie v. Barbarosa Transport, Ltd. (Appellate Division of the Supreme Court of New York 1989)
Quarles v. Columbia Sussex Corp. (District Court, E.D. New York 1998)
Cooper v. Pathmark Stores, Inc. (District Court, E.D. New York 1998)
Uptown Realty Group L.P. v. Buffaloe (Civil Court of the City of New York 2004)
Sutton v. East River Savings Bank (N.Y. 1982)
Columbia Ribbon & Carbon Manufacturing Co. v. A-1-A Corp. (Appellate Division of the Supreme Court of New York 1976)
Phillips v. Arbuse (Appellate Division of the Supreme Court of New York 1975)
City of New York v. Crest Hous. Co. LLC (New York Supreme Court, New York County 2025)
Queens Neurology, P.C. v. Allstate Ins. Co. (New York Supreme Court, Kings County 2024)
Wm. Schutt & Assoc. Eng'g & Land Surveying P.C. v. St. Bonaventure Univ. (Appellate Division of the Supreme Court of New York 2017)
Bongiovanni v. Cavagnuolo (Appellate Division of the Supreme Court of New York 2016)
CitiMortgage, Inc. v. Sultan (New York Supreme Court 2014)
Long Island Power Authority v. Anderson (New York Supreme Court 2011)
167 North Ninth Street Corp. v. Helfand (Civil Court of the City of New York 2011)
Tourneau, LLC v. 53rd & Madison Tower Development LLC (New York Supreme Court 2010)
Ferluckaj v. Goldman Sachs & Co. (Appellate Division of the Supreme Court of New York 2008)
Ferluckaj v. Goldman Sachs & Co. (Appellate Division of the Supreme Court of New York 2008)
McKenzie v. County of Westchester (Appellate Division of the Supreme Court of New York 2007)
Strongback Corp. v. N.E.D. Cambridge Avenue Development Corp. (Appellate Division of the Supreme Court of New York 2006)
Maguire v. Beyer (Appellate Division of the Supreme Court of New York 2006)
Fountoukis v. Geringer (Appellate Division of the Supreme Court of New York 2006)
Cohen v. A One Products, Inc. (Appellate Division of the Supreme Court of New York 2006)
Abbey v. Henriquez (New York Supreme Court 2006)
Access Capital, Inc. v. DeCicco (Appellate Division of the Supreme Court of New York 2002)
Alter & Alter v. Cannella (Appellate Division of the Supreme Court of New York 2001)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Memorandum. Defendants’ motion for summary judgment is supported by affidavits, containing evidentiary facts, showing that the verbal altercation in which the alleged slanders were uttered did not take place in the presence of others. It was then mandatory upon plaintiffs to submit evidentiary facts or materials, by affidavit or otherwise, rebutting the prima facie showing of no publication and demonstrating the existence of a triable issue of ultimate fact (CPLR 3212, subd. [b]; Shapiro v. Health Ins. Plan, 7 N Y 2d 56, 63; Steingart Assoc. v. Sandler, 28 A D 2d 801, 802-803; Green v. Irwin, 28 A D 2d 971). The burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified (Siren Realty Corp. v. Biltmore Prods. Corp., 27 A D 2d 519*; Twigg v. Twigg, 117 Misc. 154, affd. 202 App. Div. 729; Greenberg v. Ughetto, 17 Misc 2d 46; cf. O’Meara Co. v. National Park Bank, 239 N. Y. 386, 395; see 1 Bender’s New York Practice, § 10.20, par. 9, pp. 684-686, and supp. par. 14, pp. 265-268; Carmody, New York Practice [7th ed.], § 467; 6 Carmody-Wait 2d; New York Practice, § *73039.29, p. 477; 3 Wait’s New York Practice Simplified [4th ed.], pp. 618-620).

An opposing affidavit by one plaintiff, adopted by the other plaintiff, referred to persons named in their bills of particulars as witnesses to the alleged verbal altercation, who would be called to testify at the trial. It did not set forth how it was known what their testimony would be, or give the content of the anticipated trial testimony of the witnesses. Nor were any evidentiary facts averred showing precisely where the named persons were during such altercation or that they heard the conversations, or any circumstances, conclusions in the complaint aside, indicating that it was likely that they had heard such conversations. Hence, no triable issue of ultimate fact was raised.

The order of the Appellate Division should be affirmed, with costs.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur.

Order affirmed.

Order substituted, 27 A D 2d 522.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.